3. ESTUDIO DE MERCADO
4.3 Ingeniería del Proyecto
4.3.2 Distribución de la Planta
enforcement court even though alternative Article III review was, or
had been, at least ostensibly available elsewhere.
226Yakus v. United
States was a focus.
227To summarize briefly, during the Second World
War, Congress imposed price controls. The legislation channeled all
challenges to the administrative regulations and orders to a special
emergency court composed of Article III judges. Yakus upheld this
framework, holding that Congress could effectively bar any challenge
to the question of whether a particular price regulation violated the
statutory mandate (and/or was confiscatory) in a criminal enforcement
proceeding.
228Greatly troubled, Hart seemed somewhat mollified
REV. 518, 550–51 (1970) [hereinafter Monaghan, First Amendment “Due Process”]. For a vigorous defense of constitutional fact review, see generally Martin H. Redish & William D. Gohl,
The Wandering Doctrine of Constitutional Fact, 59 ARIZ. L. REV. 289 (2017).
224. HART AND WECHSLER, supra note 2, at 390–94 (describing expansion). I doubt that Hart would find objectionable the line of decisions leading up to Executive Benefits Ins. Agency v. Arkison, 134 S. Ct. 2165 (2014). Of the consent-based theory of adjudication by a non-Article III judge elaborated upon in Wellness International Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1944 (2015), I am less sure. But if litigants are prepared to waive the protections of Article III, Hart advances no reason and I myself see none to object. I recognize, of course, that there is a real danger that the “consent” will not in fact be voluntary. For a more detailed analysis, see HART
AND WECHSLER, 2019 supplement, at 52–53.
225. HART AND WECHSLER, supra note 2, at 389–90 n.8 (discussing Merrill, supra note 210, which it describes as “provid[ing] a careful historical study of the origins of the appellate review model”). Merrill shows that the appellate-review model had taken firm hold well before Crowell
and traces its immediate origins to the Court’s reaction to passage of the Hepburn Act governing railroad rates. The term appellate-review model itself seems to have originated with Professor Fallon. See Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 915, 933 (1988).
226. The Dialogue, supra note 4, at 1379–83. Whether an adequate alternative channel of review in fact existed in Yakus is open to serious doubt. See JAFFE, supra note 27, at 391.
227. Yakus v. United States, 321 U.S. 414 (1944).
228. Id. at 429–31. The Court did allow a challenge to the entire underlying legislative framework and a meaningless facial challenge to the validity of the specific administrative rate regulation. See id. at 419–27, 446–47. The enforcement court, however, could not examine the legislative facts underpinning the administrative regulation. Id. at 425.
because review of those issues could be had in another Article III court
“and everybody assumed it had to be.”
229The precise scope of Yakus continues to vex the Supreme Court.
230Suffice to say, however, that jurisdiction splitting in the enforcement
context faces a hostile Court, as a judicial decision at the end of the
2018 Term illustrates. PDR Network, LLC v. Carlton & Harris
Chiropractic, Inc. apparently presented a Yakus issue, albeit in the civil
context.
231The relevant statutes could be read to limit the review of the
legality of certain Federal Communications Commission (“FCC”)
“orders” to the “exclusive jurisdiction” of the appropriate court of
appeals, thereby foreclosing any such review by the district court in a
civil enforcement proceeding.
232The FCC order at issue in PDR
Network had not been reviewed, and the time limit for such review had
expired.
233In a four-person concurrence, Justice Kavanaugh insisted
that in those circumstances Yakus could have no applicability in a
district court civil-enforcement proceeding unless the relevant statutes
explicitly withdrew legality review from the district court.
234There is
no doubt that this view would apply a fortiori in the criminal context.
The Court remanded the case to determine, in effect, whether the
statutory scheme did in fact raise a Yakus problem.
235The selective-service-draft cases troubled Hart even more. Estep
v. United States, a laconic opinion by Justice Douglas, said that, in a
criminal proceeding for violating an induction order, “Congress
enlisted the aid of the federal courts only for enforcement purposes.”
236Apparently, an Article III court was simply to rubber stamp the
administrative order. Heresy, of course! Estep “explained” the Court’s
prior decision in Falbo v. United States,
237which foreclosed judicial
review of the validity of the induction order, as turning on the failure
to exhaust available remedies.
238But Estep then went on to say that
229. The Dialogue, supra note 4, at 1380.
230. See United States v. Mendoza-Lopez, 481 U.S. 828, 842 (1987) (finding no finality to an administrative order in a subsequent criminal proceeding based upon violation of the order when no judicial challenge to the order had been realistically available).
231. PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (2019). 232. Id. at 2053.
233. Id. at 2058 (Kavanaugh, J., concurring in the judgment). 234. Id. at 2064–65.
235. See id. at 2056 (majority opinion).
236. Estep v. United States, 327 U.S. 114, 119 (1946). 237. Falbo v. United States, 320 U.S 549 (1944). 238. Estep, 327 U.S. at 123.